High Court · 2024
Facts
(1) wp-9688-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9688 OF 2022Pandharinath S/o. Shivajirao Jogdand,Age: 35 years, Occu. Service as Assistant Teacher,R/o. C/o. Shivaji Vidyalay CIDCO, Nanded,Tq. and Dist. Nanded...PetitionerVersus1.The State of Maharashtra,Through its Secretary,School and Education Department,Mantralaya, Mumbai-32.2.The Deputy Director of Education,Latur Division, Latur,Dist. Latur.3.The Education Officer (Secondary),Zilla Parishad, Nanded,Dist. Nanded.4.Janta Shikshan Prasarak Mandal, Umardari,Ta. Mukhed, Dist. Nanded,Dist. Nanded.5.Shivaji Vidyalay, CIDCO, New Nanded,Tq. And Dist. Nanded,through its Headmaster...Respondents …Mr. A. V. Indrale Patil, Advocate for the Petitioner.Mr. P. S. Patil, Addl. GP for Respondent Nos.1 to 3. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 09th FEBRUARY 2024.JUDGMENT PRONOUNCED ON :- 22nd FEBRUARY 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioner approaches this Court under Article 226 ofthe Constitution of India with following prayer: (2) wp-9688-2022.odt“B.By issuing writ of mandamus or any other appropriate writ,order or directions the impugned order dated 29.08.2022 passedby the respondent no.2 be quashed and set aside. Consequently,the petitioner’s name be included in ‘Shalrth Pranali’ as per suchproposal and the petitioner be paid arrears of salary as well asregular salary and for that purpose necessary directions beissued.”3.The petitioner contends that he is qualified as B.A. B.Ed. InMarathi and Geography subjects. In pursuance of advertisement dated25.08.2017 issued by respondent nos.4 and 5 for filling up post ofShikshan Sevak/Assistant Teacher, he had submitted his candidature.He was interviewed by the selection committee, being a meritoriouscandidate, he was selected and appointed vide order dated 05.09.2017.According to the petitioner his appointment is made against apermanent vacant post, as per staffing pattern approved by thecompetent authority. The proposal for approval was forwarded toEducation Officer by the management. The respondent no.3 EducationOfficer granted approval to the appointment of the petitioner vide orderdated 31.12.2019. On completion of three years of service as ShikshanSevak, a permanent approval dated 31.12.2020 has been conferred bythe Education Officer. 4.The respondent management, then forwarded the proposalfor inclusion of name of the petitioner in Shalarth Pranali for purpose ofthe release of the salary. However, the respondent no.2-DeputyDirector of Education rejected the said proposal on the ground that theappointment of the petitioner is made after issuance of GovernmentResolution dated 23.06.2017 by which ‘Pavitra Portal’ has beenintroduced as a mode of appointment of Teachers in ‘Aided Schools’.Aggrieved by the order of the Deputy Director of Education, thepetitioner had filed Writ Petition No.8575/2021 before this Court. ThisCourt. After considering the fact that the Pavitra Portal was not inoperation at the time of appointment of the petitioner, this court
Legal Reasoning
(6) wp-9688-2022.odtShalarth Pranali. He would submit that there are as many as fivereasons why the proposal of the petitioner has been turned down. Thepetitioner has no explanation as regards to the observations made byrespondent no.2 in the impugned order. Therefore, he would urge toreject the petition.10.Having considered the submissions advanced, it can benoted that there is no controversy as regards to the availability ofvacancy in respondent no.5-School at the time of issuance of theadvertisement. The petitioner came to be appointed against suchvacancy. Even there is no dispute that the petitioner holds the requisitequalification for appointment of Assistant Teacher. The EducationOfficer is the competent authority to grant approval to theappointments. Initially, the petitioner has been granted approval asShikshan Sevak and after completion of three years of service, thepermanent approval is accorded in his favour. The proposal was routedfor entering the name of the petitioner in the Shalarth Pranali forpurpose of disbursement of the salary. 11.It can be gathered from the order dated 09.08.2021 passedin Writ Petition No.8575/2021 that the proposal of the petitioner wasrejected only on the ground that his appointment is made after issuanceof the Government Resolution dated 23.06.2017 and the procedure aslaid down in the said Government Resolution for appointment throughthe Pavitra Portal is flouted. This Court observed that the PavitraPortal was not in operation when the appointment of the petitioner wasmade. It is a matter of record that the Pavitra Portal was not inoperation till June-2019. In that view of the matter, the order ofDeputy Director of Education came to be quashed and set aside. Eventhe subsequent Civil Application No.10623/2021 filed by therespondent-Authority was disposed of with clarification that respondentno.2 will consider the proposal for grant of approval and shall not reject (7) wp-9688-2022.odtthe same on the ground of alleged non-compliance of the GovernmentResolution dated 23.06.2017. 12.Perusal of the impugned order depicts that the respondentno.2 entered into the larger enquiry, as if he is considering an appealagainst the order granting approval in favour of the petitioner. Out ofthe four reasons mentioned in the impugned order it can be observedthat all these grounds were available for consideration to respondentno.2, when at first instance proposal of the petitioner was rejected.However, rejection was only for the reason that the procedure laid downunder Government Resolution dated 23.06.2017 was not followed. Thesaid reason is no more available for consideration in view of the orderpassed by this Court in earlier round of litigation. In this background,apparently it can be noted that respondent no.2 has dug out thegrounds, which were not subject matter of his earlier order.13.This Court in many matters has laid down that the DeputyDirector of Education while considering the proposal for entering thename of teacher in the Shalarth Pranali does not exercise the powersakin to the Appellate Authority. In present case, when the EducationOfficer had granted approval to the appointment of the petitioner asShikshan Sevak and after completion of three years granted permanentapproval, further grounds which are based on the procedure laid downin the Government Resolution dated 23.06.2017 could not have beenreopened by the Deputy Director of Education. Reliance can be placedon the judgment of this Court in case of Datta Vs. State ofMaharashtra and Others1. This Court observed as under:“6. In our view, the Deputy Director of Education has no power tointerfere with the order passed by the Education Officer alreadygranting approval to the appointment of the petitioner andthereafter for transfer from unaided division to aided division, onthe ground that the said appointment as well as the said transferwas not in compliance with the provisions of law. There were noallegations of fraud or manipulation against the petitioner or12022 (4) AIR Bom R 131. (8) wp-9688-2022.odtagainst the Management by the Deputy Director of Educationwhile rejecting the proposal for entering the name of the petitionerin Shalarth Pranali for online payment.”14.So far as grounds of rejection mentioned in impugned orderis concerned, apparently there is nothing on record to indicate that theappointment of the petitioner is in violation of reservation roster.Further when management had made the communications before theadvertisement with the office of the Education Officer no surplusteachers were made available. Even impugned order does not indicatethat surplus teachers were available for appointment whenadvertisement was issued by the respondent management. Therefore,on consideration of the merits of the matter, it is difficult to accede withthe reasoning adopted by respondent no.2. We are therefore, inclined toset aside the impugned order and issue consequential direction. Hence,we proceed to pass following order:ORDERa.Writ Petition is allowed.b.The impugned order dated 29.08.2022 passed by respondent no.2is hereby quashed and set aside.c.The respondent no.2 shall include the name of the petitioner inthe Shalarth Pranali as per proposal and issue necessary direction forrelease of his salary. d.Writ Petition is disposed of. e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/February-2024
Arguments
(3) wp-9688-2022.odtquashed and set aside the order passed by the respondent no.2-DeputyDirector of Education. After disposal of writ petition, State ofMaharashtra and others filed Civil Application No.10623/2021 seekingreview/modification of the order dated 09.08.2021 passed in WritPetition No.8575/2021. This Court after considering rival submissionsdisposed of the said application with direction that respondent no.2 willconsider the proposal for grant of approval on its own merits, but notreject on the ground of alleged non-compliance of GovernmentResolution dated 23.06.2017. 5.The respondent no.2-Deputy Director of Education videimpugned order dated 29.08.2022 again rejected the proposal forinclusion of name of the petitioner in ‘Shalarth Pranali’ by givingfollowing reasons: 1.The approval to appointment is granted by Education Officer in absence of verification of the roster. 2.Although applicant is appointed against the vacancy occurred onaccount of retirement of Mr. S. K. Ghogare, no prior permissionhas been obtained for filling up the post.3.The Inward register maintained by the Education Officer(Higher Education, Zilla Parishad, Nanded) nowhere showsentry of proposal for period from 11.01.2018 to 28.02.2018.4.The advertisement for recruitment of the post is published onlyin one newspaper i.e. ‘Shramik Ekjut’ instead of two widelycirculated newspapers.6.According to the petitioner, the Deputy Director ofEducation exceeded his jurisdiction while rejecting proposal, when hisearlier order was set aside by this Court in Writ Petition No.8575/2021dated 09.08.2021. According to the petitioner, respondent no.2 was notauthorized to delve into the question of validity regarding approval (4) wp-9688-2022.odtgranted by the Education Officer. The reasons given in the impugnedorder are contrary to the directions given by this Court in Writ PetitionNo.8575/2021 and Civil Application No.10623/2021. 7.Per contra, respondent no.2 in his affidavit-in-replycontends that the Government Resolution dated 23.06.2017 prescribesthe procedure for recruitment of the teachers. The Rule 9(2-A) and(2-B) of the Maharashtra Employees of Private Schools (Conditions ofService) Rules, 1981 by which amendment has been introducedpursuant to the judgment in Public Interest Litigation dated 24.06.2015mandates publication of advertisement besides Pavitra Portal in twowidely circulated newspapers, out of which, one should be localnewspaper having wide circulation in the region. However, this Rulehas been violated in present case. It is further contended that in case ofthe vacancy on account of retirement or death of any employee, it wasnecessary for management to obtain the necessary permission from theoffice of the Education Officer. In present case, no such permission wasobtained before publication of advertisement. It is further contendedthat although the advertisement is dated 05.09.2017, the approval hasbeen granted on 31.12.2019 and there are no traces of submission of anyproposal in the record of the Education Officer. Evidently, a back datedorder of appointment has been issued to the petitioner. It is furthercontended that the management in connivance with the EducationOfficer created false record. It is further pointed out that thereservation roster was not updated before granting approval in favourof the petitioner. For aforesaid reasons the impugned order is justified.8.Mr. Indrale Patil, learned Advocate appearing for thepetitioner vehemently contends that the appointment of the petitioneris made against the clear vacancy as per staffing pattern approved bythe competent authority. He would submit that the petitioner is dulyqualified to be appointed as teacher. He responded to the (5) wp-9688-2022.odtadvertisement issued by the management and after going through theprocess of selection, he has been appointed. His appointment asShiksan Sevak was duly approved by the Education Officer and aftercompleting the period of three years as a Shikshan Sevak, thepermanent approval is accorded in his favour on 31.12.2020. Theproposal for inclusion of the name of the petitioner in Shalarth Pranaliwas forwarded to the office of respondent no.2-Deputy Director ofEducation. However, it was rejected only on the ground that theappointment was made after promulgation of Government Resolutiondated 23.06.2017. However, this Hon’ble in Writ Petition No.8575/2021quashed and set aside the order passed by respondent no.2. Therefore,the grounds regarding the appointment of the petitioner de-hors theprocedure laid down under Government Resolution dated 23.06.2017was no more available for consideration. He would submit that thegrounds which have been depicted in the impugned order areinconsistent with the directions issued by this Court in earlier round oflitigation. He would further submit that once the Education Officer hadgranted the approval to the appointment of the petitioner as ShikshanSevak and then final approval as the Assistant Teacher, it was not openfor respondent no.2 to enter into the other aspects regardingappointment of the petitioner. Therefore, he would submit that theimpugned order be quashed and set aside and direction be issued torespondent no.2 to include the name of the petitioner in the ShalarthPranali and release the consequential benefits. 9.The learned AGP strongly opposes the contentions. Hewould submit that the Deputy Director of Education is the appropriateauthority to consider the proposals for entering the name of theteachers in the Shalarth Pranali. It is the duty of the Deputy Directorof Education to look into the legality of the appointments. In thisapplause in the procedure, it is within the domain of the DeputyDirector of Education to reject the proposal for inclusion of name in the